Summary

As indicated, Presidential actions in the form of Executive orders, proclamations, reorganization plans, etc., supplement Government procurement statutes by adding details of policy or procedure in areas left open by statutes or areas specifically authorized by statute to be changed by executive action. They thus become a part of the composite of law governing Government procurement.

PROCUREMENT REGULATIONS

While the Constitution, statutes, Executive orders, and the common law set the basic legal framework for Government procurement, Government procurement regulations have the greatest day-to-day impact on procurement operations. The regulations not only carry out express mandates of statutes, 21 but also set forth a great many policies and procedures not expressly dictated by Congress.22 The regu

21 See, for example, the Officials-Not-To-Benefit clause, ASPR 7-103.19, which sets forth the express requirement of 41 U.S.C. § 22 (1970).

"See, for example, the Inspection and Title and Risk of Loss clauses, ASPR 7-103.5 and 7-103.6, which have no express statutory basis.

lations also specify contract forms and contract clauses, thereby predetermining many of the terms and conditions of individual Government contracts. Procurement regulations, however, must always derive from express or implied authority conferred by Congress and cannot exceed constitutional or statutory limitations.

The authority to issue regulations, and the relationship of the publication and rulemaking requirements of the Administrative Procedure Act to procurement regulations, are discussed at pages 49-51 of this appendix. Publication of adopted regulations in the Federal Register is constructive notice to those subject to or affected by them.23

When issued in accordance with the statutes, procurement regulations have been held by the courts to have the force and effect of law and as such may be binding on contractors as well as the Government.24

A general description of the outstanding procurement regulations is set forth in Part A, Chapter 4, of this report.

235 U.S.C. § 552(a) (1) and 44 U.S.C. § 1507 (1970).

24 G. L. Christian & Associates v. United States, 160 Ct. Cl. 1, 320 F.2d 418, reh. denied, 160 Ct. Cl. 58, 320 F.2d 345, cert. denied, 375 U.S. 954 (1963), reh. denied, 376 U.S. 929, 377 U.S. 1010 (1964). For an analysis of the law as it has developed since the Christian case, see Braude and Lane, Modern Insights on Validity and Force and Effect of Procurement Regulation-A New Slant on Standing and the Christian Doctrine, 31 Fed. B.J. 99.